22
Jan '15
Surviving the Roberts Court
PTKAP
The Reasons for this Article
In the opinion
of many observers the five conservative justices of the Roberts Supreme Court
have, at times in major constitutional cases, become an unelected super
legislative body, one that considers itself entitled to trump the legislative
process established by the Constitution, and is more than willing to do so.
One observer, referring to
three of the cases discussed below, has taken note of:
…the court’s vision… that the race question in this country has
been solved, that unlimited amounts of money donated to political campaigns
cannot possibly lead to governmental corruption, that religious owners of
closely held corporations and prayer-leading town council members are the new
oppressed minority…
Professor
Bruce Allen Murphy of
Lafayette College, Politico Magazine, “How the Supreme Court Changed America
this Year”
In even stronger language, in a recent, highly-recommended book on the second
amendment, Professor Waldman of NYU refers to:
"... a hostile judiciary, misreading history,
overinterpreting text, and imposing
political views in the guise of
judicial philosophy."
Waldman, The Second Amendment:
A Biography (Simon and Schuster, 2014)
It
undoubtedly is the case that most decisions of the Roberts Court do not deserve
this level of condemnation. However, we
are not discussing a percentage game. Who would
patronize a physician who
prescribed helpful treatments 96% of the time but routinely did his patients
serious harm the other 4%?
The four decisions of the five justices discussed below have the potential to make our cities unsafe (Heller), to make our elections undemocratic (Citizens United), to deprive many citizens of their right to vote (Shelby County), and to accord a competitive advantage to businesses owned by religiously-devout persons over businesses not so owned (Hobby Lobby).
Moreover, in one of the cases the five
justices asserted a power to override the decisions of the Congress and the
President that this writer considers to be well beyond the powers granted to
the Supreme Court by the Constitution. An action that constitutes a dangerous
precedent.
The purpose of this Article then is to take
a hard, critical, look at these four decisions. Where possible to suggest ways
to minimize the resulting damage, prevent future damage, and, hopefully, to
provoke critical comment.
CONTENTS
Part
1
|
The
Four Decisions
|
Corporations are People and:
|
- Citizens United v. Federal Election Commission (2009) - People
(in Corporate Form) Have a Constitutional Right to “Free Speech”
|
Buy yourself an election. It’s your
constitutional right!
|
- Burwell v. Hobby Lobby (2014)- People (in Corporate Form) Have a Constitutional
Right to Practice “Their” Religion
|
Observe the law? No way, it’s against my
shareholders’ religion!
|
-Heller
v District of Columbia (2007) - Guns, Guns - über alles
|
A
loaded gun in every household! It’s so very American
|
-Shelby County, Alabama v. Holder (2013) - Voting Rights
Legislation-Adopted by a Bi-Partisan Vote in the Congress, Signed by the
President, Vetoed by The Five Justices
|
A law that you don't like? Ask The Five
Justices to repeal it.
|
Part
II
|
·
The
Effect of the Four Decisions
|
·
A
Guide to Survival
|
·
A
Constitutional Circuit?
|
·
An Untested, Unlikely, but not
Unworkable, Approach to Federal Gun Control
|
PART I
The Four Decisions
Citizens United v Federal Election
Commission (2009)
Opinion by Justice Kennedy
"if it was so, it might be; and if it
were so, it would be; but as it isn't, it ain't. That's logic"
Tweedledee (Lewis Carrol, "Through the
Looking Glass")
In 2009 five justices, Chief Justice
Roberts and Justices Alito, Kennedy, Scalia, and Thomas, (“The Five Justices”)
ruled, in the Citizens United case,
that under the free speech clause of the first amendment corporations, even
large, public, business corporations, and by implication other entities, could
not be prohibited from paying very large, indeed unlimited, sums for
advertisements, films or other media supporting or opposing specific candidates
for political office.
In so deciding The Five Justices were a very
long way from a literal reading of the Constitution. The relevant words of the
Constitution are:
"Congress shall make no law…abridging the freedom of
speech, or the press
To read those words to mean that a
government cannot restrict the right of huge, public, business corporations to
spend their shareholders' money, without the shareholders' consent, to support
or oppose candidates for public office, requires a leap (of imagination) worthy
of an Olympic gold medal.
The Decision
In the majority opinion Justice Kennedy
stated the truism that free speech is essential in a democracy, and went on, at
great length, to state three propositions:
1. More speech is better than less speech. A vast
amount of speech is better yet, and, by inference, loudness is at the
discretion of the speaker.
He
stated:
"Section 441b’s prohibition on
corporate independent expenditures is thus a ban on speech. As a “restriction
on the amount of money a person or group can spend on political communication
during a campaign,” that statute “necessarily reduces the quantity of
expression by restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached.”
This starry-eyed view of what the availability of unlimited funds will do to
political campaigns is almost touching in its innocence, a fact that any of the
Five Justices could have observed had they watched the attack ads on television,
and read the attack flyers appearing in their mail, before the 2014
elections.
Indeed, Justice Kennedy's reasoning would
support the use of a loudspeaker by one candidate in a debate to drown out his
opponent, and that is pretty much what happened in the 2014 elections.
Justice Breyer responded best to this
syllogistic reasoning that speech being good, by definition unlimited campaign
spending (money=speech) is better, In
his dissent in the 2014 McCutcheon
case:
"Where enough money
calls the tune, the general public will not be heard."
2. Corporations, like humans, have worthwhile
ideas to present to the electorate.
"Corporations… like individuals, contribute to the
…dissemination of information and ideas’ that the First Amendment seeks to
foster”
The evident fact is that a corporation is
exactly as capable of entertaining an idea as is a block of granite.
3. "Independent" political
expenditures do not give rise to the appearance or reality of corruption.
“The absence of prearrangement and
coordination of an expenditure with the candidate or his agent not only undermines
the value of the expenditure to the candidate, but also alleviates the danger
that expenditures will be given as a quid
pro quo for improper commitments from the candidate.”
For the reasons explained above, we
now conclude that independent expenditures, including those made by
corporations, do not give rise to corruption or the appearance of corruption."
Thus, all that is required to be free of
governmental restrictions is that the entity be acting "independently",
not as an official part or in coordination with the candidate's official
campaign team.
Since such "independence" is
extremely easy to counterfeit, this fig leaf now is widely employed to
circumvent limits on political contributions. Among others, it is employed by entities
formed and funded to support one particular candidate, an arrangement that on
its face is not free of suspicion.
The Consequences
Politico
reports that in the 2014 election the top 100 donors gave almost as much as
4.75 million small donors combined. The article noted that the top 100's funds
were nearly equally divided between left and right and posed the rhetorical
question whether that means that it does not matter.
Obviously it does matter. It is not a
left-right issue. It is a moneyed candidate against a much poorer candidate, or
would be candidate, issue. Politico noted:
"…the trend lines reflect a new political reality in which a
handful of superaffluent partisans can exert more sway over the campaign
landscape than millions of donors of
more average means…The widening imbalance revealed by POLITICO’s
analysis illustrates “the insanity of this system” and is further
discouragement to would-be small donors, asserted Larry Lessig, a Harvard
professor."
As The Economist reported in its October 25, 2014 edition, 80% of the 435 members of the House of Representatives faced little opposition for re-election, and in 69 cases (16% of the total) either the Republican or the Democrat party failed to field an opposition candidate. A major reason was the exorbitant cost of fielding a candidate.
The New York Times of November 9, 2014
reported that $525.6 million was spent by "independent" entities in
that off-year election. Much of this was "dark money" - money that,
due to inaction by the Internal Revenue Service and the SEC cannot be traced
back to the ultimate donor.
The same editorial reported that 94 Super
PACS, an entity made possible by the Citizens
United decision, were formed to support individual candidates and spent
$51.4 million. On its face such an arrangement makes it very difficult indeed to
believe that the entity truly is acting independently.
It is "facially" apparent that the
decision of The Five Justices already has done a huge amount of harm to our
democracy and threatens to do much worse in the 2016 election. To a significant
extent public office now is bought and sold in the United States.
Some
Comments
Professor Tribe of Harvard, almost certainly our most distinguished
living constitutional scholar, on or off the court, wrote that the Citizens United decision:
"...marks a major upheaval in First Amendment law and signals the
end of whatever legitimate claim could otherwise have been made by the Roberts
Court to an incremental and minimalist approach to constitutional adjudication,
to a modest view of the judicial role vis-à-vis the political branches, or to a
genuine concern with adherence to precedent"
A reader
of the Times' editorial (the reader commenting as well on the Shelby County case which is discussed
below) stated:
"The
conservative Supreme Court's Citizens United decision (along with its decision
to essentially nullify the guts of the Voting Rights Act) will go down in
history as one of the defining moments in our nation's history that heralded
the destruction of our democracy."
Citizens
United was followed in 2014 by McCutcheon v. FEC.
In that case The Five Justices struck down for the first time a federal limit
on political contributions. In doing so Chief Justice Roberts wrote:
Ingratiation and access …
are not corruption…They embody a central feature of democracy—that constituents
support candidates who share their beliefs and interests, and candidates who
are elected can be expected to be responsive to those concerns.”
The statement that it is quite proper that
preferred access to public officials be given to those who contributed to their
campaigns, and the implication that the access will not be employed to further
the narrow self interest of the contributor, is nothing less than astonishing
coming from a Chief Justice of the United States.
If The Five Justices really believe that
they have not done serious harm to the U.S. electoral system, they are living
on another planet.
It is a virtual certainty that every
candidate for public office who is supported by a specially-created Super Pac
is fully aware that:
·
The Super Pac, having been created to
support that candidate, in reality is an extension of the candidate’s own
campaign team, thinly disguising itself as an independent entity by following
the script laid down by The Five Justices in Citizens United.
·
After a successful election, the
contributors to the Super Pac will be entitled to the same access and preferred
treatment that they would have received had they been permitted to contribute
the funds directly to the candidate’s campaign.
In the unlikely event that, somewhere,
somehow, there is a candidate supported by such a Super Pac who does not so
understand, that candidate also is living on another planet.
Harvard Law School exhorts its graduates to
go forth and help frame "those wise
restraints that make men free". The McCain-Finegold act which was
gutted by The Five Justices in the Citizens
United case clearly was such a wise restraint.
Three of The Five Justices, Chief Justice
Roberts and Justices Kennedy and Scalia, are graduates of Harvard Law School. Decidedly, the notion of "wise restraints" had not taken hold with
these three graduates in 2009, nor had it by 2013 when The Five Justices struck
another hard blow at American democracy in the Shelby County case.
Shelby County, Alabama v. Holder
(2013)
Opinion by Chief Justice Roberts
" 'That's the effect
of living backwards,' the Queen said kindly: ' it always makes one a little
giddy at first' "
Ibid, the White Queen
In Shelby County The Five
Justices found that the 2006 renewal of the Voting Rights Act of 1965 (VRA)
enacted by an overwhelming, bipartisan, vote of both houses of the Congress and
an enthusiastic signing by President Bush, was not well adapted to 21st century
conditions and that, therefore, its core feature was unconstitutional.
In so doing, “with one stone
they struck two blows” (translated from the French):
·
They eviscerated one of the most successful civil-rights laws in the
history of the Republic.
·
They held legislation to be
unconstitutional merely because they considered it badly designed for its
stated purpose, thus validating a fear of judicial excesses expressed by Thomas
Jefferson nearly 200 years earlier.
The Voting Rights Act
The VRA was enacted in 1965 to implement the
fifteenth amendment to the Constitution (a post Civil War amendment) which
states:
"1.
The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or
previous condition of servitude.
2. The Congress shall
have power to enforce this article by appropriate legislation."
The
VRA was extended several times. Because it had been found that prohibiting
specific devices, such as literacy tests, designed to discourage voting by
African Americans, or other minority groups, merely led to the creation of new
devices, the VGA employed a pre-clearance mechanism.
States,
or subdivisions of states, that had a history of such discrimination became
“covered jurisdictions” and could not adopt new voting rules without obtaining
a preclearance from the Justice Department or from a Federal appeals court.
From
the beginning, the preclearance mechanism proved a powerful and effective tool
to prevent minority citizens from being disenfranchised or having their votes
watered down by redistricting, etc. The jurisdictions subject to the
preclearance requirement were mainly, but not exclusively, in the south.
The
most recent extension of the VRA was in 2006. The House and Senate conducted
extensive hearings and concluded that the definition of jurisdictions requiring
preclearances, while some forty years old, was still a valid classification and
would continue to be effective. The
evidence of this was extensive. For example:
Inthe seven years before
the 2006 renewal of the VRA, of the 462 successful cases, objections, and
settlements under section 2 of the act (which operates nationwide, not only in
covered jurisdictions) 422 were from covered jurisdictions.
Between 1982
and 2006, the Department of Justice objections blocked over 700 voting changes
based on a determination that the changes were discriminatory. Congress found
that the changes blocked by preclearance were “calculated decisions to keep
minority voters from fully participating in the political process.”
By
2006, minority voting conditions in the covered jurisdictions had vastly
improved compared to 1965. Such conditions were not worse in some of the
covered jurisdictions than they were in some non-covered jurisdictions.
However,
it was apparent from the evidence that Congress had amassed that this was not
solely due to a change of generations and of attitudes in the covered
jurisdictions. It also was due to the
operations and dissuasive effect of the preclearance requirement.
The
operation of, or threat of, Federal oversight had blocked or dissuaded many
planned contemporary attempts by covered jurisdictions to adopt discriminatory
legislation, particularly second generation measures designed to dilute
minority votes rather than to entirely block such voting.
The
conclusion was obvious. The covered jurisdictions needed to remain subject to
the preclearance requirement or some of them would adopt the discriminatory
legislation that previously had been blocked by the Department of Justice or
that they had held back under the threat of Federal oversight.
Accordingly,
in July of 2006 the House passed the extension of the VRA by a vote of 390 to
33 and the Senate passed it by a vote of 98 to 0, indicating that even the
senators from nearly all of the covered states voted for the extension.
President
Bush signed the VRA extension on July 27, 2006 calling it:
“an example of our continued commitment to a
united America where every person is valued and treated with dignity and
respect.”
Since
the House, the Senate and the President had concluded on the basis of a great
deal of evidence that the legislation would be effective to protect minority
voting rights in the covered jurisdictions, it is clear that the Congress had a
rational basis for enacting it.
That
should have been the end of the story, but it was not. The Five Justices
disagreed and held that the use of forty-year old classifications for the
pre-clearance requirement was unconstitutional.
They
did not rule that the preclearance mechanism itself was unconstitutional, but
that its definition of covered jurisdictions with time had become
unconstitutional. That decision emptied
the VRA of covered jurisdictions and thus left the preclearance system
inoperable.
Justice Ginsburg, speaking
for the dissenting four justices, stated that destroying the preclearance mechanism was like throwing one's umbrella
away in a rainstorm because one is not getting wet. She came down hard on the majority decision:
“Until today, in considering
the constitutionality of the VRA, the Court has accorded Congress the full
measure of respect its judgments in this domain should garner...Leaping to
resolve Shelby County’s facial challenge without considering whether
application of the VRA to Shelby County is constitutional… the Court’s opinion
can hardly be described as an exemplar of restrained and moderate decision
making. Quite the opposite. Hubris is a fit word for today’s demolition of the
VRA."
The
Five Justices did invite the Congress to enact an up-to-date formula but, as
they surely are aware, this is most unlikely to happen while the nation remains
saddled with a nonfunctional congress.
Precursor
to the Supreme Court Decision
In 2009 a case under the VRA,
brought by Northwest Austin, a Texas district, reached The Supreme Court.
Northwest Austin sued for relief from the preclearance requirement asking that
the Supreme Court either reverse a lower court ruling that it was not eligible
to bail out of covered jurisdiction status, rule that the preclearance
requirement was unconstitutional.
The court decided the case in
favor of Northwest Austin on the statutory grounds thus making it unnecessary
to decide, or even discuss, the constitutional issue. However, Chief Justice
Roberts seized the occasion strongly to suggest that the court well might be
ready to declare preclearance unconstitutional when an appropriate case came
before it. He stated:
"...the Act imposes
current burdens and must be justified by current needs...The Act also
differentiates between the States, despite our historic tradition that all the
States enjoy 'equal sovereignty'...a departure from the fundamental principle
of equal sovereignty requires a showing that a statute’s disparate geographic
coverage is sufficiently related to the problem that it targets."
This was strong stuff. It was
a not very subtle invitation to the covered jurisdictions to find one among
them, that was not eligible to elect out of covered jurisdiction status, to
bring a suit, based solely on the "Current Burdens : Current Needs"
test to declare the law
unconstitutional.
Moreover, the "Current
Burdens : Current Needs" test was a surprising choice for a case under the
fifteenth amendment, which accords particularly broad powers to the Congress.
It seemingly was chosen to facilitate a finding of unconstitutionality.
Shelby County, Alabama was
the chosen jurisdiction. It was a confessed sinner and thus was ineligible to
bail out of covered status. It brought a suit, tailored to the Chief Justice's
specifications, asking that the preclearance requirement be declared
unconstitutional and permanently inoperable.
The case was tried in the
Federal District Court for the District of Columbia. That court made a mammoth
review of the vast amount of evidence collected by the Congress to support the
2006 renewal of the VRA and decided against Shelby County.
The case then was appealed to
the D.C. Court of Appeals. That court also decided against Shelby County,
upholding the constitutionality of the 2006 renewal of the VRA. The court did
so, with one dissent, in a decision that was a model of exemplary judicial
performance.
The appeals court left
nothing to chance. It reviewed the evidence in detail, carefully considered the
arguments of Shelby County, applied the Current Burdens : Current Needs test as
directed by Chief Justice Roberts in Northwest
Austin, and concluded:
“…although
the section 4(b) formula relies on old data, the legislative record shows that
it, together with the statute’s provisions for bail-in and bailout…continues to
single out the
jurisdictions
in which discrimination is concentrated. Given this, and given the fundamental
principle that we may not ‘strik[e] down an Act of Congress except upon a clear
showing of
unconstitutionality,’ …we see no principled basis for setting aside the
district court’s conclusion that section 5 is ‘sufficiently related to the
problem that it targets’…”
The
Decision of The Five Justices
The Constitution does not
contain any provision defining the circumstances under which the courts are
empowered to declare acts of Congress to be unconstitutional. Logically enough,
since there has to be some means to determine this, the Supreme Court found in
1803, in the case of Marbury v Madison, that it had this implied power.
Not everybody agreed. Thomas Jefferson disagreed, having stated his
reservations in a letter to William Jarvis in 1820:
“You seem ... to consider the judges as the ultimate
arbiters of all constitutional questions; a very dangerous doctrine indeed, and
one which would place us under the despotism of an oligarchy. Our judges…have,
with others, the same passions for party, for power, and the privilege of their
corps....Their power [is] the more dangerous as they are in office for life,
and not responsible, as the other functionaries are, to the elective control.
The Constitution has erected no such single tribunal…It has more wisely made
all the departments co-equal and co-sovereign within themselves.”
Jefferson’s views
notwithstanding, the right of the Supreme Court to determine constitutionality
has long since been established.
However, it was obvious from
the beginning that an indiscriminate use of this power, with a small group of
unelected justices regularly overruling the Congress, would undermine the
constitutional basis of American democracy, and this did not occur.
By and large, laws were
overturned only in cases where a credible conflict with the Constitution could
be shown, such as where the Congress had had no reasonable basis for the
enactment.
the case of the fourteenth
and fifteenth amendments which explicitly give the Congress the power, and
implicitly the responsibility, to enforce the amendments by appropriate
legislation, it should take a congressional blunder of monumental proportions
to justify a finding of unconstitutionality.
Notwithstanding this evident
truth, in 2013, nearly 200 years after ex-president Jefferson wrote his letter,
in the Shelby County decision The Five Justices applied a test with a
low threshold of unconstitutionality and, in so doing, supplied a striking
example of just what worried Mister Jefferson.
To begin with, Chief Justice
Roberts described a situation quite different from that found to exist by the
Congress, whose judgment had been found to be convincing by the D.C. Court of
Appeals.
The report of the House
Judiciary Committee began with a lengthy summary of the improvement of voting
conditions in the covered jurisdictions since the VRA first was enacted in 1965
and went on with an even more lengthy summary of the extensive evidence that
the VRA still was needed in these jurisdictions to preserve those gains.
The Chief Justice, borrowing
heavily from the first part of the report and virtually ignoring the second
part, described a situation where the need was not present. Without ever being
explicit on the point, the Chief Justice described at some length the improved
state of minority voting in the covered jurisdictions as if it were a
satisfactory condition kept in being by the wishes of the state and local
governments concerned and not by continued oversight by the Federal government.
He did make references to the
congressional findings that buttressed the importance of keeping the
preclearance system in operation to prevent backsliding. He stated
"Under this theory,
however, [the preclearance provision] would be effectively immune from
scrutiny; no matter how “clean” the record of covered jurisdictions, the
argument could always be made that it was deterrence that accounted for the
good behavior."
It is very surprising that
the Chief Justice failed to acknowledge in this comment that sufficient years
of good behavior would entitle a covered jurisdiction to avail itself of the
"bailout" provisions to become uncovered. The good behavior would be
rewarded without inquiring whether it had been voluntary or due to the
preclearance requirement
It is worthy of note that
nowhere in the opinion does the Chief Justice mention that none of the
presently covered jurisdictions had availed themselves of the
"bailout" provisions to become uncovered, suggesting that none of
them could show “clean” operations for the length of time needed to qualify.
He also stated:
"Regardless of how to
look at the record, however, no one can fairly say that it shows anything
approaching the “pervasive,” “flagrant,” “widespread,” and “rampant”
discrimination that faced Congress in 1965, and that clearly distinguished the
covered jurisdictions from the rest of the Nation at that time."
In other words, the
congressional basis for the 2006 re-enactment of the VRA was flawed because it
was not based upon current discrimination in covered jurisdictions being at the
high level that existed in 1965 when the VRA first was enacted. That is what
the Chief Justice's words seem to say. If that is what he meant, it would be
difficult to imagine a more unrealistic approach.
Even the Chief Justice's
idealized view of the situation would not have enabled The Five Justices to
declare that the Congress did not employ "rational means" in its 2006
re-enactment of the VRA. There was too much evidence behind the congressional
action for that. The Five Justices needed a lesser test to strike down the
coverage formula. They had prepared for this eventuality in enunciating the
"current burdens: current needs" test in the Northwest Austin case and it duly was trotted out.
The Chief
Justice declared that Congress' singling out of certain states and subdivisions
was "based on 40 year-old facts having no logical relationship to the
present day". It therefore did not satisfy the “Current Burdens : Current
Needs” test.
Paraphrasing
this test, it states “let the punishment fit the crime”, or “a law to be
constitutional must effectively deal with the underlying problem.
This test puts the
Supreme Court in the position of second guessing the Congress, a task that it
is neither entitled nor equipped to carry out.
Justice
Ginsburg had this to say:
"...when
Congress acts to enforce the right to vote free from racial discrimination, we
ask not whether Congress has chosen the means most wise, but whether Congress
has rationally selected means appropriate to a legitimate end...the dispositive
question is whether Congress has employed 'rational means.”
The action of
The Five Justices was the equivalent of their ruling:
-that the Congress had a constitutional right to regulate speed
limits on local roads in certain states that had a high level of fatal auto
accidents;
-that the Congress had conducted extensive hearings on road
conditions, speed limits, etc., in those states,
-that it set
the speed limit there at 35 mph for ten years and renewed that legislation
several times for further ten-year periods, after hearings disclosing that the
roads had not been materially upgraded since the 35 mph limit was imposed,
-and The Five
Justices then concluding that, since road fatalities had fallen dramatically in
the covered states during the period that the 35 mph limit was in effect, a
speed limit of 35 mph no longer was needed, was not in effect in neighboring
states, and therefore was unconstitutional!
In such a case
one would expect the accident rate to go back up once the 35 mph speed limit
was removed. Similarly, one would expect the states that were found to have
continued their attempts to limit voting by minority citizens to renew their
efforts once the main Federal restraint was removed. As is noted above, that
has occurred.
Elsewhere in this article,
Judge Posner is quoted as saying that the historical references in The Five
Justices' Heller opinion were a
"snow job". Applying a similar
analysis to the Shelby County case,
that decision of The Five Justices was a "hatchet job".
Opinion by Justice Alito
Why sometimes I've believed
as many as six impossible things before breakfast."
Ibid, the White Queen
The Hobby Lobby case held that under the
Religious Freedom Restoration Act of 1993 (RFRA), the religious objections of
Hobby Lobby's owners to complying with a Federal law could be asserted by their
closely-held business corporation. In effect, the corporation was found to
have religious beliefs that would be violated by compliance with the law.
Henceforth,
closely-held business corporations plausibly can assert, citing the first
amendment and the Hobby Lobby case,
personal religious objections to compiling with a large list of legal
requirements that are not to their taste.
At
issue was the ObamaCare requirement that Hobby Lobby provide its employees with
contraception insurance. Hobby Lobby's owners had no objection to 16 of the 20
types of contraception covered, but the other four violated their religious
belief that life begins at conception.
In
holding that the business corporation could shield itself behind its shareholders
religious beliefs, Justice Alito tried to rule narrowly and avoid opening the
floodgates. Time will almost certainly show that his effort did not succeed:
He tried to
eliminate tax protesters from the equation noting that the Supreme Court had
ruled to this effect in the Lee case,
stating that in that case:
"We
observed that '[t]he tax system could not
function if denominations were allowed to challenge the tax system because tax
payments were spent in a manner that violates their religious belief.'”
True
enough, but ObamaCare, the medical system, also could not function if enough
closely-held business corporations opted out citing their owners' religious
objections. In both cases the added cost would be borne by the remaining
participants.
We
well yet may see tax protesters hiding behind the Hobby Lobby decision in their ongoing war with the Internal Revenue
Service.
Justice
Alito also distinguished the case of publicly-held business corporations such
as IBM and General Electric stating:
” ...the idea that unrelated
shareholders—including institutional investors with their own set of
stakeholders—would agree to run a corporation under the same religious beliefs
seems unlikely.”
Again,
the statement is perfectly correct, but in this instance is most
surprising. The Citizens United case, in which Justice Alito was a member of the
majority, held that all corporations, certainly including IBM and General
Electric, properly can be characterized as groupings of individuals banded
together to express their political views in common. It seems, then, that
shareholders of IBM, General Electric, Google, and other large,
publically-held, business
corporations, properly are regarded as groupings of like-minded individuals as
to political matters, but, astonishingly, those very same like-minded
shareholders are at loggerheads as to religious matters.
As
has become customary, Justice Ginsburg in her dissent has gone directly to the
point. She notes that different religions object to different medical procedures,
there being:
“…religiously grounded objections to blood
transfusions (Jehovah’s Witnesses); antidepressants (Scientologists);
medications derived from pigs, including anesthesia, intravenous fluids, and
pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations
(Christian Scientists, among others).”
As to
Christian Science, she could have gone further. In its original form it
rejected all medical procedures. As summarized (perhaps more than a bit tongue
in cheek) by Mark Twain:
“…the Christian feels nothing. Your empty
and foolish imaginings are profanation and blasphemy, and can do you an injury.
It is wiser and better and holier to recognize and confess that there is no
such thing as disease or pain or death."
Mark
Twain, Christian Science, Oxford University Press, USA (1997), (first published
in 1899)
Today’s
dogma is more nuanced with the Christian Science web site stating:
“Like all systems of healing,
the track record for Christian Science isn’t perfect. But, over 80,000 Christian Science healings have been published throughout the past
140 years, including severe cases. “
In all probability there are some Christian Scientists who hold
to the earlier, uncompromising, view. Does the Hobby Lobby decision mean that business corporations that they
control may opt completely out of ObamaCare, passing the entire cost of
insuring their employees to others?
That possibility highlights another unfortunate feature of this
decision. We now have two categories of closely-held business corporations.
There is a privileged category whose owners are devoutly religious and an
under-privileged category whose owners are not. Clearly, The Five Justices have
awarded a competitive advantage to corporations of the privileged
category. It now pays in dollars and
cents to be devout!
A Comment
It would be a miscarriage of
justice if The Five Justices are not in contention for a Nobel Prize for
science, having done nothing less than create a new sub-species of humanity and
endowed it with the rights of free speech and free practice of religion.
The Five Justices well may be
planning to build on this unprecedented accomplishment. The Constitution
contains further guaranteed rights that might benefit these newly-created
beings. The rights to vote, freedom from cruel or unusual punishment and the right
to bear arms come to mind.
Heller v District of Columbia (2007)
Opinion
by Justice Scalia
"When you've once
said a thing, that fixes it, and you must take the consequences."
Ibid, the Red Queen
The second amendment was adopted on
December 15, 1791 and states:
"A well regulated
militia, being necessary to the security of a free state, the right of the
people to keep and bear arms, shall not be infringed"
The main body of the Constitution had just
been adopted and the country had a potentially powerful central government for
the first time. This worried the Anti-Federalists since the powerful central
governments that they knew of, in England and on the European continent, often
had descended into tyranny.
In particular, they worried that the
national government would seek to disarm their “white knights”, the militias of
the several states, consisting of all able-bodied white men between specified
ages, thus depriving them of their best line of defense against possible
central-government tyranny. The second amendment was adopted to assure them
that this could not occur.
Since the militia system faded out of
existence not long after these events, it seemed that the second amendment had
become a dead letter. For over two hundred years governments, national, state
and local considered themselves free to enact such gun-control legislation as
they thought necessary to protect their residents and the courts did not
interfere.
During this period
Warren E Burger, a Republican, conservative, and former Chief Justice underscored the fact that the second amendment was no
longer operational. He wrote:
"the idea that the 2nd amendment has anything whatsoever to
do with an individual's right to own a gun is the biggest Constitutional hoax
ever perpetrated on the American people".
However, the increasingly assertive gun
lobby did not agree and orchestrated an ever increasing drum-beat campaign
seemingly intended to convert the United States into a nation bereft of unarmed
civilians. In 2007, despite the 200+ year history of a dormant second
amendment, and the views of the ex-chief justice, The Five Justices more than
obliged the gun lobby in the Heller case.
The Case
The case involved the strict gun laws of
the District of Columbia, a jurisdiction that has been called the "Murder
Capital" of the United States. Mr. Heller, a security guard who carried a
handgun when on duty, wished to keep a private handgun in his home for
protection. However, this was forbidden under the D.C. law. He challenged the
law claiming that it violated his second amendment rights.
The majority opinion holding in his favor
was written by Justice Scalia in over 60 pages. He cited a staggering number of
precedents for collateral points, making it very heavy going for the reader.
One highly-respected commentator, himself a Federal Appeals Court judge,
commented on this:
"The range of historical references in the majority opinion
is breathtaking, but it is not evidence of disinterested historical
inquiry. It is evidence of the ability
of well-staffed courts to produce snow jobs."
Posner, In Defense of Looseness (The New Republic, August 27, 2008)
When he did get down to the main point,
Justice Scalia did so by referring to the 1939 Miller case which was the only prior Supreme Court case that was
faced with the issue whether the second amendment overrode laws limiting
private ownership or use of firearms. Justice Scalia summarized the holding of
the Miller case in these words:
"This holding is not only consistent
with, but positively suggests, that the Second Amendment confers an individual
right to keep and bear arms (though only arms that 'have some reasonable
relationship to the preservation or efficiency of a well regulated militia…the
kind in common use at the time.)' ”
Still quoting from the Miller case, Justice Scalia's opinion
stated:
"The traditional militia was formed
from a pool of men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary war era,
[small-arms] weapons used by militiamen and weapons used in defense of person
and home were one and the same.” State v. Kessler.
Thus,
The Five Justices, undoubtedly correctly, understood the situation in 1791 to
be that individuals commonly kept firearms at home to defend themselves and
their homes, and for other non-military uses. When some of those individuals
were called into active militia service they brought those same firearms along.
However,
it seems that, in the justices' understanding, there was at that time no
difference between firearms designed for militia service and those designed for
non-military uses.
This statement is particularly
surprising given that the following statement appears earlier in the Scalia
opinion:
“Quaker frontiersmen were forbidden to use
arms to defend their families, even though “[i]n such circumstances the
temptation to seize a hunting rifle or knife in self-defense … must
sometimes have been almost overwhelming.” (Emphasis added)
Their
apparent misunderstanding that there was no difference between eighteenth
century military and civilian small arms faced The Five Justices with a
dilemma; how to define the weapons that were covered by second amendment
protection in 1791 and, by extension, in the present day.
·
They could not define them as
weapons designed for non-military use since, in their understanding, all of the
weapons in common non-military use in 1791 were equally designed for military
use.
·
Obviously, despite their
apparent understanding that all small firearms in use in 1791 were protected by
the second amendment, they could not say that all small arms currently in use
are so protected.
·
To do so would accord current
constitutional protection to some completely unregulated firearms, such as
home-made zip guns used by urban gangs and guns printed at home from designs
downloaded from the Internet.
Speaking
through Justice Scalia, they circumvented this problem by defining the
protected category in 1791, and by extension in 2007, in terms of the remaining
common characteristic of the 1791 weapons, that they were in common use.
In so
doing, they adopted a rule of law very poorly adapted to our 21st century
society, one capable of sowing a great deal of mischief.
The quarrel here is not with Justice
Scalia's finding that the Constitution accords a right to individuals to own
guns. If the second amendment does not do so, then the ninth amendment, quoted
below, surely does.
The quarrel then, and it is a serious
quarrel, is with the adoption of the “common use" rule which seemingly was
based upon a faulty understanding of the situation in 1791. A better understanding
well might have produced a much safer rule.
Small Arms in 1791
Leaving aside weapons used in warfare at
sea, the main types of small arms in common use in the United States in 1791
were:
·
Muskets.
These had smooth bores and were the preferred military weapons of the time.
They were inaccurate and of little use in hunting or protecting against Indian
raids. However, a trained user could reload and fire a musket three to four
times a minute. A line of men doing this projected a wall of lethal fire
difficult for its opponents to avoid. The function of the musket, then, was
similar to the function of the machine gun in World War I.
·
Rifles.
These had rifled barrels and were much more accurate than muskets, but it took
three to four minutes to reload and fire one. Residents of rural and western
jurisdictions who had to depend on hunting for food or who were subject to
Indian raids typically owned rifles which were much superior to muskets for
these uses.
The colonies had laws requiring men of militia age to own militia-ready weapons. That of
Massachusetts required ownership of a "Good Fixed Musket". That of
New York of a "Good Musket or Firelock (musket fired by a spark). The law
of Virginia is of special interest:
" every non-commissioned officer and
private [to equip himself] with a good, clean musket carrying an ounce ball,
and three feet eight inches long in the barrel, with a good bayonet and iron
ramrod well fitted thereto, a cartridge box properly made, to contain and
secure twenty cartridges fitted to his musket."
Reflecting
the fact that residents in the rural western areas of the colony needed to use,
and did use, rifles rather than muskets for civilian uses, that law went on to
state:
“Provided, That the militia of the counties
westward of the Blue Ridge, and the counties below adjoining thereto, shall not
be obliged to be armed with muskets, but may have good rifles with proper
accoutrements, in lieu thereof.”
Doubtless, militia members used their
muskets for non-military tasks. Rifles, in turn, sometimes were used in militia
service. Nonetheless, the musket was designed primarily for military use and
the rifle of the day primarily for civilian use.
Any
resident of New York or Massachusetts who used a rifle as his civilian weapon
and who showed up for militia duty bearing the rifle would be breaking the law
which required him to show up bearing a musket
Thus,
it simply was not true that in 1791 there was no difference between weapons
kept for civilian use and those used in militia service. They were the same in
many cases, but not in all cases.
The
Five Justices, then, easily could have avoided the "common use" trap
by ruling that in 1791 the second amendment afforded constitutional protection
to ownership of militia-ready weapons (muskets) owned by present or future
militia members, and to weapons designed for civilian use (rifles) in the hands
of all law-abiding civilians.
Private
ownership of weapons to be used in military service long having disappeared in
the United States, under this test current constitutional protection would be
accorded to weapons designed for uses (such as hunting, target shooting,
personal protection) that would be legal when carried out by civilians.
As
will appear below, a "designed for" test would be far less dangerous
than the "common use" test that The Five Justices did adopt.
The
Heller Holding
In the event, The Five Justices declared
that, pistols are in common use in the United States as were muskets in the
late eighteenth century. Thus, Mr. Heller's pistol qualified for second
amendment protection. Their opinion declared the D.C. gun-control laws
unconstitutional stating:
"..handguns are the most popular
weapon chosen by Americans for self-defense in the home, and a complete
prohibition of their use is invalid."
Having neatly excised the words "A well regulated
militia, being necessary to the security of a free state" from the second amendment, and ruled that constitutional protection is available to
handguns because they are in common use for lawful purposes by law-abiding
persons. Justice Scalia then had to deal with the fallout of such a test, and
the potential fallout was huge.
This is not surprisingly, given that The
Five Justices had created a test of constitutionality that placed matters in
the hands of the arms manufacturers. If they could mount a sales campaign that
quickly made a new weapon popular, no matter how much of a threat it posed to
public safety, it could pass out of the reach of the regulators. Its ownership
would be protected by the second amendment.
Still worse, firearms manufactured at home
with 3D printers, from models downloaded from the Internet, and acquired
without leaving the slightest paper trail or undergone the slightest safety
inspection, could achieve constitutional protection. The country could awake
one day to find that they were in common use and thus constitutionally
protected.
Justice Breyer's dissent
pointed this out with very considerable force. To deal with this evident truth,
Justice Scalia sought to carve out an exception:
-
"We also recognize another important limitation on the
right to keep and carry arms… We think that limitation is fairly supported by
the historical tradition of prohibiting the carrying of ‘dangerous and
unusual weapons.’ ” (emphasis added)
If this statement means that a weapon that
is not unusual cannot be banned, no matter how dangerous it is, the statement
is virtually meaningless. However, it is likely that it is a typographical
error. Earlier in the opinion Justice Scalia refers to the earlier English test
as "dangerous or unusual" (emphasis added), quite a different
test.
The interesting recent study of the Roberts
Court by Professor Laurence Tribe and Joshua Matz quotes the Scalia test as
"dangerous or unusual".
Uncertain Justice, the
Roberts Court and the Constitution (Henry Holt and Co., 2014)
Dangerous Weapons
The AR-15, the civilian version of the
army’s M-16 assault rifle, is scarcely unusual. It is one of the most popular
guns in the United States and, although not designed for uses that would be
lawful for civilians, it undoubtedly is overwhelmingly used for lawful
purposes.
As an example of lawful use, AR-15s are used
by some owners for hunting in states that permit this. Justin Peters' of Slate
quotes an ex-military person on this subject:
"A hunter does not need a semi-automatic rifle to hunt, if
he does he sucks, and should go play video games. I see more men running around
the bush all cammo'd up with assault vests and face paint with tricked out
AR's. These are not hunters but wannabe weekend warriors"
Justin Peters, posted in Slate on January 2,
2013
All of us, with the exception of the
members of the NRA and other believers in the religion of guns, learned five
years after Heller, in 2012, how
important it is to ban AR-15s and other assault weapons from open sale to
civilians. In December of that year an AR-15 was
used by a demented youth in Newtown Connecticut to massacre twenty very young
school children and several adults. As one knowledgeable observer has
noted:
"When someone like Adam Lanza uses it [an AR-15] to take
out 26 people in a matter of minutes, he’s committing a crime, but he isn’t
misusing the rifle. That’s exactly what it was engineered to do."
Justin
Peters, posted in Slate on January 2, 2013
One can hope that Justice Scalia will, in
putting his opinion into final form, change the “and” to an “or” so that
dangerous weapons can be banned from open sale to civilians even if they are
not unusual, or that future rulings will limit the class of arms open for sale
to civilians to those designed
principally for uses that would be lawful when practiced by civilians.
Even if those events occur, the AR-15 is a
very popular firearm among law-abiding persons and it is not certain that,
under the "common use" test, it and similar weapons, would be
deprived of constitutional protection.
Sensitive Geographic Areas
Justice Scalia also said that the carrying
of firearms in sensitive areas such as schools could be forbidden. While he did
not so state, this carried a negative implication that there is a
constitutional right to carry guns in less sensitive areas.
Not surprisingly, this statement led
directly to the Peruta case. In 2014,
a three-judge panel of the Ninth Circuit Court of Appeals in California held,
with one judge dissenting, that, under the Heller
rationale, this right of self defense did in fact extend beyond the home; that
law-abiding citizens also have a constitutional right to carry their loaded
weapons about in public places for self defense!
In July of 2014, a Federal judge in Washington, D.C. ruled to
the same effect, that the District's prohibition of carrying firearms about in
public was invalid under the second amendment.
Those decisions superficially are a logical
enough extensions of the Heller decision.
If there is a constitutional right to keep a handgun at one's home for
protection, why should there not be a parallel right to carry one about in
public where the need for protection very often will be greater?
The response, of course, is that to permit our cities to teem
with persons openly carrying loaded guns, free from interference by the police,
would present a huge danger to a city's inhabitants. Even a person that himself
was armed would be at greater danger than in a city that did not permit the
ubiquitous and open carrying of loaded weapons. Such a situation that can only
be described as nightmarish.
Other judicial jurisdictions have disagreed with the Ninth
Circuit and the D.C. court, but it is unsettling to have such decisions on the books.
It is not unreasonable, for example, to require an owner of a
deadly weapon to undergo a psychological examination, training in proper use
and handling of such weapons, and to comply with similar registration
formalities and to pay similar periodic fees as one does to own an automobile.
The Ninth Amendment
Was the majority wrong to find that the
Constitution accorded an individual right of gun ownership? Not really. The
disappearance of the second amendment would not mean that all constitutional
rights to gun ownership disappeared with it.
The ninth amendment states:
"The enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage others retained by the
people." [This was applied to the states by the 14th amendment.]
A great many Americans owned guns before
the Bill of rights was adopted so that it follows that the people’s right to
continue to do so was preserved by the ninth amendment. However, as Justice
Breyer noted in his dissent, that right was subject to limitations.
The colonies and their subdivisions could,
and did, limit ownership and usage of firearms when it was considered necessary
to do so to ensure public safety. Among the examples he cites is one bearing a
significant resemblance to the D.C. law that the majority struck down.
Boston’s gunpowder law imposed a £10 fine
upon “any Person” who “shall take into any Dwelling-House, Stable, Barn,
Out-house, Ware-house, Store, Shop, or other Building, within the Town of
Boston, any . . . Fire-Arm, loaded with, or having Gun-Powder.”
Had they ruled under the ninth amendment rather than the second
amendment, The Five Justices easily could have forsworn the Heller “take no
prisoners” approach, and could have left standing the D.C. laws which were in
place to protect the D.C. residents.
Part
II
Earlier in this article, Professor Tribe was quoted
as saying that the 2009 decision of the Roberts Court in the Citizens United
case demonstrated the absence of “a modest view of the judicial role vis-à-vis the political
branches". Citizens United surely demonstrated that
absence, and four years later Shelby County reinforced his judgment.
Justice Ginsburg referred to
the Shelby County decision by The Four Justices as “hubris”. That is a
strong word, but she may well have softened her language in deference to the
five colleagues with whom she must deal on a daily basis.
Still
stronger language is called for. What The Five Justices did in the cases
discussed above, particularly in the Shelby
County case, calls to mind Thomas Jefferson’s 1802 warning that giving
judges too much power will end with “the corruptions of time and party (causing them to)
become despots”. The Five Justices
are not despots, but they have pointed the way.
As
Professor Amar of Yale points out, over the years we have developed an
unwritten constitution that supplements the written Constitution.
One
feature of this is that Congress is to be given deference in legislative
matters and only overridden in clear cases, such as when there is no rational
basis for the action taken. This is especially true in 15th amendment cases
where the Constitution gives special responsibility, requiring special powers,
to the Congress to implement its terms.
As
the four cases discussed above disclose, The Five Justices have displayed scant
respect for this feature of the unwritten constitution. Were this to become a
common practice, we would be well on the path to George Orwell’s
nightmarish world of "Nineteen Eighty Four.
That
being so, a solution that would strip the Roberts Court of jurisdiction over
constitutional cases, such as that proposed below, should not be off the table.
The Effect of the Four Decisions
The
Five Justices have given us a lot to worry about. These four decisions have the
potential to do serious injury to the country in which we live. Putting them in chronological order:
·
2007 – Assigning constitutional protection to guns on the basis of
their popularity, not on the basis of their suitability for civilian use. A
justice-made law that has the potential to make it unsafe to walk about in our
cities without body armor since it could lead to a situation in which all
persons without a criminal record or a history of mental illness will be
entitled to carry loaded firearms about in public, and many will do so. (Heller)
·
2009 - Elections for important offices routinely will be won by the
candidate able to outspend the opponent, often through the offices of a
privately-financed Super Pac. This would be formed to elect a single candidate,
be thinly disguised as an "independent" entity, and be able to spend
an unlimited amount to get its candidate elected. (Citizens United )
·
2013 - State and local governments that risk being voted out of
office if African-American and Hispanic citizens are allowed to vote will, free
of the preclearance requirement, be able to adopt procedural rules that
effectively disenfranchise many of those citizens. (Shelby County)
·
2014 --
By giving business corporations the right to opt out of compliance with laws
that do not accord with the religious beliefs of the owners of the corporation,
The Five Justices created two classes of business corporations. A privileged
class owned by religiously-devout persons and an under-privileged class owned
by persons who are not so devout. (Hobby Lobby)
A Comment
One can only speculate what leads five
well-educated and highly-intelligent justices
to, quoting Justice Scalia in his dissent in a recent case make such "a
mess" of these decisions.
If it is an "originalist" view
that all clauses of the Constitution should be given their eighteenth-century
meaning, it is misguided. It would not be easy to find four other cases, Heller
included, as far removed from the eighteenth-century meaning.
The most striking common factor in these
four cases is that they all involve The Five Justices repealing or overriding legislation
adopted by elected representatives of the people. The decisions all are
consistent with the conservative mantra of the need to reduce the role of
government in our lives, but their taking such drastic action suggests that
there may be more involved.
Quite
obviously, the Roberts Court is highly politicized. Efforts on the part of the
chief Justice, and some of the other justices, to mask this fact with
statistics as to unanimous decisions, etc., would be transparent even if
Justice Scalia had not tipped us off when he said in a recent case:
“… I prefer not to take part
in the assembling of an apparent but specious unanimity.”
It is apparent that further
speculation just now on what is behind these four decisions is a waste of time.
Therefore, we can best expend our energies in looking to the future. What can
we do to mitigate the damage that The Five Justices have inflicted so far? What
can we do to cut off such damage in the future?
A
Guide to Survival
In a continuing crisis, the first thought is likely not to be
“what can we do to undo the damage that already has been done”, but rather “how
can we cut off the flow of further damage”’.
Happily, Article III of the
Constitution gives us the possibility to do just that.
That is the good side. The
bad side is that the Article III solution would work only if we recover the
services of a functioning Congress. That is not on the immediate horizon, but
preventing any five justices from running roughshod over the Congress should be
a bipartisan issue. So there is hope.
A Constitutional Circuit?
Article
III of the Constitution states:
Sectio
1
"The judicial Power of the United States,
shall be vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish..."
Section
2
This section gives the Supreme Court original (i.e., not
appellate) jurisdiction over a very limited category of cases and then states:
"In all the other cases…the supreme Court shall have
appellate jurisdiction, both
as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress shall make".
These provisions are clear.
There is no doubt that they give the Congress the power to deny the Supreme
Court appellate jurisdiction over a case or a category of cases. Indeed, the
Supreme Court itself has so held.
The issue of stripping the
Supreme Court of jurisdiction arose in 1869 in Ex parte McCardle. There a unanimous Supreme Court dropped the case
before it after the Congress withdrew
jurisdiction.
The issue arose again in 2006 in Hamdan v Rumsfeld, a case brought by a
Guantanamo detainee. The court held that the Congress had not sought to deprive
the court of jurisdiction over the case because it already was pending when the
jurisdiction-stripping law was enacted.
Justice Scalia, vigorously dissented from this
holding with two other of the conservative justices (the Chief Justice had to
recluse himself) arguing that when the Congress wishes to strip jurisdiction it
means to strip it from pending as well as from future cases. Never one to mince
words, he stated on the jurisdiction point:
"…the
Court has made a mess of this statute"
None of the eight justices who voted in the
case questioned the general power of
the Congress to strip the Supreme Court of jurisdiction. That is not surprising
given the unmistakably clear wording of the Constitution.
This power of the Congress could be
employed on a case-by-case basis as it was in the McCardle case. For example, the Congress could re-pass the Voting
Rights Act after adding a clause that provided an additional means for covered
states to escape its restrictions, so that the act as amended would not be
identical to the version that The Five Justices declared to be partially
unconstitutional in the Shelby County
case.
If the Congress added a further provision
that there be no appeal to the Supreme Court it is likely that the legislation
would withstand judicial scrutiny.
However, if it wished to paint with a
broader brush, one that applied to all or most constitutional appeals, the Congress could establish a fourteenth
Federal Court of Appeals for the "Constitutional Circuit". All
Constitutional cases would go to it. Appeals to the Supreme Court would be
allowed only when, and if, the Congress gave its consent. In
all other cases, the decisions of the Constitutional Court would be final.
The Constitutional Court being newly
created, Congress could build in safeguards not present under the current
system. To lessen the risk of the kind of calcification we have been seeing on
the present court, it might provide that some of the seats on the new tribunal
be filled on a temporary, rotating, basis by judges from the thirteen other
Federal appeals courts.
In addition, to provide a different mindset
one or two seats might be filled from the ranks of justices of the highest
state courts, or from the ranks of leading academic constitutional scholars.
The possibilities may not be endless, but
there are a great many of them and the result could be a radically different
approach to constitutional litigation.
A radical approach? A type of forum shopping? The response is
“yes” to both questions, but a radical approach is needed, even if it does
involve forum shopping.
An Untested, Unlikely, but
not Unworkable,
Approach to Federal Gun
Control
In addition to the problem of the Roberts
Court, a major problem in achieving a reasonable Federal system of gun-control
is the cowardice of a number of members of Congress, such as those who fearful
of reprisals from the NRA refused, even after the disaster in Newtown,
Connecticut,FINAL to vote to set up a national registry of gun owners.
Where does that leave us? If we cannot count on the Congress or
on the Supreme Court to lessen the danger, what can we do?
In fact, in theory at least, there may be a third way to achieve
a reasonable level of gun control.
"The United States…shall
protect each … [state] against invasion and on Application of the Legislature,
or of the Executive (when the Legislature cannot be convened) against domestic
violence."
Obviously, the framers of the Constitution were not thinking of
the type of gun violence that we have been facing. But words, all words in case
of the Constitution, have meaning, and gun violence clearly constitutes
"domestic violence".
Moreover, the intention of Article IV, Section 4 clearly is that
the Federal government must act where the matter is one that cannot be dealt
with satisfactorily by a state acting alone. Many aspects of gun control are in
that category, since regulation by an individual state easily is undercut by
guns from other states being carried over open borders.
Used
judiciously, and with restraint, triggering Article IV, section 4, could reduce
the unacceptable level of gun violence that we endure and that the Heller decision threatens to worsen. For example, a national register of
gun ownership could be created.
To calm the
fears of the gun owners that the register would be the first step in a process
that would end with government seizure of privately-owned guns, the legislation
could contain a doomsday provision that would dissolve the register on both
houses of the Congress passing legislation of a defined type.
Would a request
by one or more states under Article IV, section 4, provoke action by a branch
of the Federal government? It should, the constitutional language is mandatory
and it applies to all branches of the Federal government, including the
Congress and the Executive branch. Article IV, section 4 requires the Federal government to act if a request is
filed.
To find out if
in fact it will act, one of the 50 states must file a request. Will such a request ever be filed? Unlikely,
but not impossible, and if filed, not unworkable.
Do we have
reason for hope? Let us hope that we do!
oOo
